R v Richards (K)

• Jurisdiction: Cayman Islands
• Judge: (Smellie, C.J.)
• Judgment Date: 15 May 2000
• Court: Grand Court (Cayman Islands)
• Date: 15 May 2000

Grand Court

(Smellie, C.J.)

R.

and

RICHARDS

S.W. Bulgin, Solicitor General, and Miss C. Richards, Crown Counsel, for the Crown;

D.S. Schofield for the accused.

Cases cited:

(1) Att.-Gen. (Hong Kong) v. Wong Muk Ping, [1987] A.C. 501; [1987] 2 All E.R. 488; (1987), 85 Cr. App. R. 167, applied.

(2) Chan Wing-Siu v. R., [1985] A.C. 168; [1984] 3 All E.R. 877, applied.

(3) D.P.P. v. Kilbourne, [1973] A.C. 729; [1973] 1 All E.R. 440; (1973), 57 Cr. App. R. 381, dicta of Lord Hailsham of Marylebone, L.C. applied.

(4) D.P.P. v. Majewski, [1977] A.C. 443; [1976] 2 All E.R. 142; (1976), 62 Cr. App. R. 262, applied.

(5) Powery (Denton) v. R., 1994–95 CILR 373, applied.

(6) R. v. Baskerville, [1916] 2 K.B. 658; (1916), 12 Cr. App. R. 81.

(7) R. v. BlakeENR(1844), 6 Q.B. 126; 115 E.R. 49; 13 L.J.M.C. 131.

(8) R. v. Cheema, [1994] 1 W.L.R. 147; [1994] 1 All E.R. 639, applied.

(9) R. v. ChristieELR, [1914] A.C. 545; sub nom. D.P.P. v. Christie, [1914–15] All E.R. Rep. 63; (1914), 10 Cr. App. R. 141, applied.

(10) R. v. Norton, [1910] 2 K.B. 496; (1910), 79 L.J.K.B. 756.

(11) R. v. Sharp, [1988] 1 W.L.R. 7; [1988] 1 All E.R. 65; (1987), 86 Cr. App. R. 274.

Evidence-corroboration-accomplices-uncorroborated evidence of accomplice to be treated with caution and must itself be credible-corroborative evidence must be admissible, from independent source and incriminate accused-mutual corroboration by accomplices usually impermissible-court to specify corroborative evidence

Evidence-admissions-admissions by silence-statement made to accused implying guilt inadmissible as evidence of truth unless accepted by accused-silence not implicit acceptance, even if circumstances require explanation or denial

Criminal Law-murder-joint enterprise-participants in armed robbery each responsible for death by shooting if acting together with common intention to shoot if resisted-court need not determine which participant fired shot

The accused was charged in the Grand Court with murder, grievous bodily harm, robbery and possession of firearms with intent to commit an offence.

The accused was involved in an armed robbery during which one security guard was shot and fatally wounded, dying later in hospital from his injuries, and another was wounded. The surviving guard was unable to identify the accused. Two weapons were found in the accused”s possession. Three co-accused pleaded guilty to offences relating to the robbery. A fifth man, believed to be the second assailant, was not apprehended.

The first co-accused admitted to being the driver for the accused and his accomplice. He alleged that another co-accused had recruited them and they had planned the robbery together. He also reported subsequent conversations giving conflicting evidence as to who had fired the fatal shot, in the light of forensic evidence as to which bullets were fired from each gun. He alleged, inter alia, that after the robbery he had heard the fugitive accomplice tell the accused he had had to shoot the guard who offered resistance (according to other evidence, the surviving guard).

The second co-accused alleged that the accused was in control of the distribution of the proceeds of the raid. A third co-accused gave further conflicting evidence of the relative roles of the two principal offenders, and another witness testified that the fugitive accomplice visited her shortly before the robbery seeking ammunition for the gun which did not fire the fatal shot.

When questioned by the police, the accused admitted to receiving moneys from the fugitive accomplice to pay the driver, and handling the weapons used in the incident. He pleaded not guilty to all charges save the possession of firearms after the robbery, and did not give evidence. The case was heard by a judge sitting alone.

Held, convicting the accused on all counts:

(1) The court would treat the evidence of the various accomplices with caution, since there were obvious dangers in relying on the uncorroborated evidence of persons primarily concerned to minimize their own exposure to punishment. Only if their evidence was itself capable of belief did the question of corroboration arise. It could be rejected altogether if it were too tainted with inconsistencies and contradictions to be reliable. Corroborative evidence must be admissible in itself, originate from a source independent of the evidence to be corroborated, and tend to show, by confirmation of material particulars, that the offence charged was committed by the accused. The court was required to state what evidence it found to be capable of amounting to corroboration. Mutual corroboration of evidence by accomplices was not normally permissible, since it could not be regarded as independent (page 167, line 42 – page 168, line 18; page 168, line 30 – page 169, line 20; page 172, lines 37–41).

(2) The remark which the driver alleged was made by the fugitive accomplice to the accused was inadmissible to show by inference that the accused had shot the guard who subsequently died rather than the one who offered resistance. Such a statement made in the presence of an accused was not evidence against him of the facts stated unless he accepted it. Since it was common practice (although not a rule of law) that proof of the accused”s acceptance of the statement be tendered and since silence could not constitute such acceptance even in circumstances where an explanation or denial could reasonably be expected, the statement was of no probative value here, there being no evidence that the accused had reacted in any way to the remark, or even understood its import (page 165, line 27 – page 166, line 17).

(3) Taking the evidence as a whole, and rejecting the exculpatory parts of the accused”s statements to the police in which he claimed to be an accessory after the fact, the court was satisfied that the accused was involved as a principal offender in the robbery. To this extent, the evidence of the accomplices was corroborated by the accused”s own admissions of the possession of the firearms and stolen money. Together with the forensic evidence that the guns and other items found in his possession were those used in the robbery and the absence of any plausible explanation for his involvement after the event, the accom-plices” evidence could be relied upon to show that the accused took part in the raid and distributed the proceeds afterwards (page 170, lines 17–20; page 172, lines 9–20; page 174, line 7 – page 175, line 20).

(4) In any event, as one of the two participants in the robbery, acting together on a common understanding, the accused could be held respon-s-ible for the offences committed in pursuance of their joint enterprise. The two men were armed and clearly intended to shoot if resisted. Each knew that serious bodily harm or death would result and each therefore had the necessary intent to be convicted of the murder of the security guard, regardless of which of them fired the fatal shot. However, it seemed probable from the evidence that the accused had fired the fatal shot. Exculpatory comments by the accused, as reported by the driver, on his role in the robbery relative to that of his accomplice, although admissible, were rejected by the court in its discretion, as it was entitled to do when considering a mixed statement. The deceased died as a direct result of his injuries. The accused would be convicted on all counts (page 163, lines 3–12; page 166, line 44 – page 167, line 26; page 172, line 44 – page 173, line 38; page 175, line 32 – page 176, line 18).

40	SMELLIE, C.J.: The defendant is charged in the first four counts of
the present indictment with the offences respectively of murder, causing
grievous bodily harm, robbery and possession of firearms with intent to
commit an offence. He elected to be tried by judge alone pursuant to
s.127 of the Criminal Procedure Code. The trial proceeded before me
45	during May 1st–9th. This is the judgment.

The defendant had been charged with three others on the present
indictment. On Indictment No. 57B of 1999 two others were charged. All
are alleged to have been involved in various ways in events which led to
the death by shooting of William Myles and the shooting of David
5	Samuel Ebanks during the course of a robbery on April 4th, 1999 or in
related events which followed. The other defendants have pleaded guilty
to specific related offences.
I am particularly concerned with testimony from three of those others
who have pleaded guilty, are awaiting sentence and have testified for the
10	Crown against the defendant Richards. The three, Delbert Baker, Desmond
Bailey and Alphonso Smith, are by their pleas and their inculpatory
testimony clearly to be regarded as accomplices and their evidence must
be assessed accordingly. The relevant principles will be discussed.
15	The incident
David Samuel Ebanks and William Myles were employed as security
guards with Shield Security Co. Their assignments involved the making
of night bank deposits on behalf of Shield Security for various businesses
in and around George Town. They operated a security van for these
20	purposes and, as is still the norm throughout the Cayman Islands amongst
security officers, they were unarmed. Myles was the driver and Ebanks
made the deposits.
The following narrative of events is taken from Ebanks”s testimony:
Among the businesses for which Shield Security made deposits was
25	Foster”s Food Fair, both their Strand and Airport locations. Foster”s
deposits were made to the Bank of Nova Scotia deposit box at the bank”s
Central George Town branch. Myles and Ebanks had been making these
deposits for Foster”s for some 12 years. They alternated the times but
took settled routes from the stores to the bank.
30	On April

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